Re: Motionto DisqualifY Paul Levyfor Conflict of Interest

Honorable J udgeGeorgeJ .Hazel

6500 Cherrywood Lane
Greenbelt, MD20770
Re: Kimberlin v. National Bloggers Club,
No,GLH13-3059
Aug4, 2014
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Dear J udge Hazel:
Sixmonths ago, I filedamotion to disqualifY Attorney Paul Levybecause heis
laboring under multiple conflicts of interest. That motion has not yet been ruled on
but the conflicts continue and Mr. Levyisusing themagainst meinmany adverse
ways.
Asnoted inthe motion, Mr. Levyused to bemy attorney and has consulted with me
inalegal capacity onvarious occasions over the past two decades, including as
recently as 2012. Hecurrently works for Public CitizenLitigation Group. An
organization that I amworking for inanadvisory capacity, Protect Our
Elections.org, is also currently represented by Public CitizenLitigation Groupina
casepending before J udge Richard Leoninthe USDistrict Court for the District of
Columbia. Public Citizen, Protect Our Elections, Kevin Zeese and CraiB Holman v. FEC,
No. 14-148 (RJ L)Public Citizenisaplaintiff inthe caseas isattorney KevinZeese,
who isthe attorney for Protect Our Elections. For the past several weeks, I have
been working with the attorneys involved with that caseregarding aMotionfor
Summary J udgment that was filedlast Thursday. ECF23, 7/30/14. Myinvolvement
inthat case, which began as acomplaint to the Federal Elections Commission, pre-
dated the filingof the instant lawsuit.
I have repeatedly advised Mr. Levythat heislaboring under multiple conflicts of
interest and that his conflicts have had and will have anadverse effect onme. AsI
made clear inmy recusal motion, I never waived the attorney client relationship
with Mr. Levy,and hecannot do so unilaterally. Despite this, hehas refused to
withdraw fromthe case. Instead, hecontinues to filepleadings and has used those
conflicts to harm me, and now myteenage daughter.
Yesterday, hepublished another blogpost defaming me, callinginto question your
recent rulings, and opining that J udgeGrimmfollowed "thetime-honored tradition
of dumping his most burdensome and least attractive caseonto the docket of a
newly-appointed judge:' Hestated that my daughter will facewithering and
harmful cross-examination fromthe defendants if I filefor apreliminary injunction,
and used his blogpost to once again threaten my family and mefor exercising my
First Amendment rights to redress.
. ..,",
Case 8:13-cv-03059-GJH Document 174 Filed 08/04/14 Page 1 of 7
"It looks to meas if Brett Kimberlin isdigging himself adeeper hole with
every paper he filesinthe Maryland federal litigation..... Andmany of the
claims inhis lawsuit are soplainly frivolous that Kimberlin could easily end
up being under avexatious-litigant injunction requiring himto get
permission for future pro selawsuits.
Hemay well beat the point that heisthe onewho needs to get out of the
litigation as quickly as possible, lest hemake matters worse for himself and
his family. Whether hehas the self-restraint, and the goodjudgment, to seek
that way out remains to beseen."
Attached.
J udge Hazel, enough isenough fromMr. Levy. Hehas continued to filepleadings in
this caseafter I forcefully invoked my attorney client relationship/privilege, and he
has engaged in extra judicial statements inorder to try to intimidate meand harm
mefor exercising my First Amendment rights to redress. And, inasick twisted way,
he, inhis blogpost yesterday, has adopted Defendant Walker's "corruption of blood"
justification for attacking my teenage daughter. Heisblaming mefor the bullying
attacks onher, likethose who blame the woman for the rape because shewore
something attractive.
I urge you to rule onthe Motionto Disqualify and holdahearing if necessary. If,as I
assert inmy motion and declaration, Mr. Levyis laboring under multiple conflicts of
interest, heshould not befilingpleadings inthis caseor representing Defendant Ace
of Spades. .
Sincerely,
.,""K;mb"B~
Case 8:13-cv-03059-GJH Document 174 Filed 08/04/14 Page 2 of 7
Friday, August 01,2014
Brett Kimberlin's Dilemma
by Paul AlanLevy
Readers of this blogmay recall that Brett Kimberlin has filedadefamation action against
two dozen bloggers and other defendants; Public Citizenisinthe case for the limited
purpose of defending the anonymity of one of the bloggers. Sincethat blogpost, there have
been anumber of developments, including adecision bythetrial judge to followthe time-
honored tradition of dumping his most burdensome and least attractive case onto the
docket of anewly-appointed judge.
Last week, Kimberlin served onthe defense lawyers (but not the pro sedefendants) aletter.
which hesaid hewas attempting to fileunder seal, asking J udgeGeorgeHazel to allowhim
to fileamotion for apreliminary injunction compelling the defendants to remove fromtheir
various web sites the various statements over which heissuing, and barring four pro se
defendants frommaking future negative statements about him. (Theprevious judge inthe
case, trying to copewith alarge number of filingfrompro separties who plainly detest each
other, imposed apre-motion letter requirement reminiscent of the SONYand EON). J udge
Hazel denied the request and granted it inpart - herefused to allowKimberlin to seek a
preliminary injunction over the repetition of statements alleged inthe Second Amended
Complaint, saying that preliminary relief could only besought about statements post-dating
the complaint Andeven then the motion would haveto belimited to four defendants
identified intheletter-request (not including the anonymous blogger).
Kimberlin's filing, and thejudge's response, raise ahost of interesting issues. For one, the
judge's approach to the pre-Amended Complaint and post-Amended Complaint dichotomy
.strikes meas odd, because the purpose of apreliminary injunction isto protect against
irreparable injury pending adecision onthe merits. If post-complaint statements are not
the subject of the litigation onthe merits (Kimberlin having been instructed that his Second
Amended Complaint would bethelast permissible amendment), why isthejudge
inthis casethe right one to consider apreliminary injunction about those statements?
Indeed, adefamation lawsuit over the statements could not befiledinthe District of
Maryland as arelated casebecause there isno diversity-two ofthe pro sedefendants live
inMaryland.
Kimberlin's Failed Expectations About the Impact of Suing
Kimberlin's letter request explains that he expected the suit to induce the defendants to
"remove ... the defamatory content outlined inthe complaint:' but that the defendants have
uniformly refused any removal while the litigation continued. Hegoes onto explain the
impact hehad hoped his lawsuit would have: "I filedthis suit because Defendants would not
stop their attacks onmy familyand me. I hoped that the filingof the suit would cause
Defendants to [rein] intheir reprehensible conduct" Kimberlin goes onto assert that not
only havethe criticisms continued, but that his children have been adversely affected by
what their friends, and their friends' parents, havelearned about himasaresult of the
attacks, and heputs this forward as abasis for apreliminary injunction. Heindicates that,
for example, that other parents won't let their children havesleepovers with his daughter.
For the purpose of this blogpost, I will assume that there are some blogposts that are
having an adverse effects onhis family and even onhis children, although Kimberlin's
history of prevarication, and indeed convictions for crimes of dishonesty notto speak of the
Case 8:13-cv-03059-GJH Document 174 Filed 08/04/14 Page 3 of 7
dishonesty to which headmitted as quoted in"CitizenK," make it hard to take anything he
says at facevalue. But that does not mean hehas any chance of getting the posts hedoes
not liketaken down.
Tothe contrary, apublic figure libel plaintiff gets relief against criticism only if heproves
that the defendants have made false.statements of fact (not rhetorical hyperbole) and
proves by clear and convincing evidence that they made the falsestatements with actual
malice. Andif the libel defendants truly believeinthe truth of their criticisms, the effect of
suingthem may simply beto prompt them to repeat and even amplify their criticisms. If the
plaintiffis right about falsity and actual malice, of course, this sort of repetition ishighly
unwise, because it increases the damages that may beawarded. Andthe fact that
Kimberlin's children haveto pay the price of having anotorious father isatragedy that his
critics ought to consider. But the decision whether to run such risks rests with the
defendants.
The Strict Rule Against Preliminary Injunctions Against Defamation
Moreover, the harms caused by defamation are remedied byanaward of damages.
Preliminary injunctions to prevent defamation, however serious the effect of the statements
onthe plaintiffs' reputation, are strictly forbidden bythe First Amendment as prior
restraints. Weat Public Citizenhavegenerally taken afirmstance against preliminary
injunctions inlibel cases because the possibility of getting such injunctions, particularly
when sought inthe plaintiffs home court against adefendant who lives elsewhere, gives
plaintiffs too much incentive to pursue meritless libel claims onwhich they are unlikely to
succeed after full and fair litigation, assuming that the defendant canget that far. It remains
an open question (ably addressed by DayidArdia) whether the rule against prior restraints
bars apermanent injunction against statements found actionable subject to First Amendent
standards after afull and final adjudication, but thegeneral rule, followed inthe Fourth
Circuit whose precedents govern the Maryland federal trial court where Kimberlin filed
suit, isthat equity will not enjoin alibel.
Kimberlin has every right to represent himself, of course, but had heconsulted with a
lawyer who could explain how defamation litigation works, hewould have learned that
filingalawsuit does not necessarily force the defendants either to remove criticisms or to
stop making criticisms.
Another way inwhich filingadefamation suit may cause accusations to betaken down, or at
least deter the defendants fromposting new criticisms, isthat the defendants may retain
counsel who warn of the high cost of defending against libel suits, and indeed givetheir
clients cautious advice that discourages further criticisms. Suchimpact canbeexacerbated
when the plaintiff either has significantly greater financial resources than the defendants,
and thus canlitigate them into oblivion, or where the plaintiff has sued pro se, and thus can
impose the expenses of litigation onthe defendants without incurring any expenses
himself. Reading between the lines of Kimberlin's court filings and his communications
with defendants and their counsel, Kimberlin may well have been encouraged to expect
such consequences by defense reactions to previous pro selibel suits that hehas filed; he
claims to have received either damages, or promises not to repeat criticisms, fromother
critics. AgainI findit difficult to take anything Kimberlin says at facevaluegiven his past,
but even ifhe istelling the truth about these past results, that would not establish that he
had good grounds for his complaints about past criticisms, only that hemay well have had
the benefit of strike suit settlements.
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Inthis case, that strategy has not paid off because some of the defendants are getting pro
bono representation, or perhaps representation under libel insurance policies, while other
defendants arejust as pro seas Kimberlin is, and hence lacking inthe financial incentives
about litigation costs that might induce themto retract or suspend their attacks. Moreover,
many of the defendants have apparently been outraged by Kimberlin's lawsuit against them,
and are showing thatthey firmly believe inthe truth of their criticisms, and so they are
making Kimberlin the focus of their public statements even though, had heleft them alone,
they might well have moved onthe other targets. Someof them, indeed, may well be
basking inthe attention that his lawsuit has given themamong other bloggers who detest
Kimberlin; some are using the suit to appeal for donations.
Kimberlin has been claiming that several defendants are already indiscussions with him
about paying himto bedropped fromthe case- an apparent effort to stampede some
defendants into paying upto avoid being left inthe caseafter other defendants have paid
less. I havebeen asking around, though, and fromwhat I have been told there isno
defendant who admits to being indiscussions about paying Kimberlin to settle out of the
case. I challenged Kimberlin onthis point, and hedid not givemethe name of any
defendant who isindiscussions abut settlement for apayment of money to Kimberlin.
Kimberlin's Effort to Keep His Materials Under seal
Kimberlin compounded his problems by asking that his request for leaveto filefor a
preliminary injunction befiledunder seal. TheFourth Circuit strongly disfavors the sealing
of court filings, and prescribes an arduous course of notice to the public with adetailed
justification of sealing, opportunity for any person to object to sealing, and then adetailed
ruling that isappealable to the Fourth Circuit byany outside intervenor. J udgeHazel made
short work of Kimberlin's attempt at sealing - heboth ruled onthe request and placed both
his ruling, and Kimberlin's profferred sealed filing, onthe public record. Presumably,
Kimberlin was given the chance to withdraw the paper instead (as the local rules provide);
perhaps hepressed on, and accepted the consequences of public filing, because hewanted a
prompt ruling onwhether he could move for apreliminary injunction.
Because Kimberlin offered no public justification for this request for sealing, wecan only
speculate about his reasoning; the best indication isthe aspect of the request that says he
plans to fileunder seal affidavits fromhimself and fromafifteen-year old daughter detailing
the impact of the challenged statements onhis family. Presumably, hewas hoping to
conceal this reference frompublic scrutiny.
But I findit doubtful that Kimberlin will beableto keep his affidavit, or his child's affidavit,
about the harms suffered under seal. InDoeV . Public Citizen, the Fourth Circuit was
unwilling to allow acompany to prevent public access to litigation documents reflecting
falsereports that its products had caused certain consumer injuries, and showing theharm
that disclosure could cause its business. Similarly, if Kimberlin wants acourt to issue
unprecedented prior restraints against his critics, the public isentitled to know what harms
are or arenot enough tojustif'ysuch drastic relief.
Will Kimberlin Subject His Daughter to aPublic Trial?
Moreover, it does not seemto melikely that submitting affidavits about claimed harm are
goingto beenough - the defendants heseeks to restrain are entitled tobe confronted by
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their accusers face-to-face, and to have the chance to cross-examine; and given the intense
hostility between the parties that the courts havepreviously noted, there isno reason to
think these pro sedefendants might not want to take their pound of flesh. Indeed,
considering that thejudge has indicated that Kimberlin needs to makespecific showings
about the harm caused bythe specific statements against which hewants relief, the
defendants might well start asking questions about exactly why parents won't let their
daughters havesleepovers at the Kimberlin household. Isit because they learned that he
used to beamajor drug dealer, importing large quantities of drugs fromMexico? Or
because hewas convicted of aseries of bombings that left some people severely injured? Or
isit because they learned that anewspaper article in Indiana reported onthe murder of the
grandmother of apre-teen girl who was worried that Kimberlin was going out with a
daughter she considered irresponsible sothat hecould get access to the grand-daughter?
Or maybe because, after hegot out of jail, and already inhis forties, Kimberlin was allegedly
singing rock and roll songs about thejoys of sex with teenage girls, and because aDC-area
publication that interviewed himabout the songs praised himfor his honesty about how
older men feel about attractive teenagers. Or, was it some more recent, post-Second
Amended Complaint statement that isdepriving his daughter of sleepovers?
If Kimberlin seeks relief, heisgoing to have to show through the testimony of some person
with personal knowledge just what the reasons are that his daughter's friends parents are
givingfor getting inthe way of his daughter's social life. Presumably, that would bethe
daughter herself. Thepro sedefendants against whomrelief issought might choose to
cross-examine her.
Inurging menot to pointto the First Amendment as areason why hecannot get aprior
restraint, Kimberlin urged meto consider "the human costs."Butas I seeit, Kimberlin
needs to look inthe mirror when heisthinking about who isresponsible for those costs.
Andhecould easily make it worse if hemoves for apreliminary injunction relying onthe
evidence hehas described. Wewill learn byAugust 28, the deadline given bythe judge for
the filingof apreliminary injunction motion, whether Kimberlin issoself-centered that he
would put ateenage daughter though such apublic spectacle just sothat hecanseek a
narrow injunction, confined as J udgeHazel has said it must beto post-Second-Amended-
Complaint statements byahandful of defendants, indeed aninjunction what would be
forbidden as aprior restraint and, if issued, subject to summary reversal.
Kimberlin Faces aVicious Cycle
It looks to meas if Brett Kimberlin isdigginghimself adeeper holewith every paper hefiles
inthe Maryland federal litigation. Thenews that hewas seeking apreliminary injunction
against pro sedefendant Walker ledWalker to post the Washington CityPaper interview
with Kimberlin about his raunchy song lyrics, thus bringing greater attention to thevery
parts of his past that Kimberlin hopes to conceal. Andmany of the claims inhis lawsuit are
soplainly frivolous that Kimberlin could easily end up being under avexatious-litigant
injunction requiring himto get permission for future pro selawsuits.
Hemay well beat the point that heisthe one who needs to get out of the litigation as
quickly as possible, lest hemake matters worse for himself and his family. Whether hehas
the self-restraint, and the goodjudgment, to seek that way out remains to beseen.
Case 8:13-cv-03059-GJH Document 174 Filed 08/04/14 Page 6 of 7
to get permission for future pro selawsuits.
Hemay well beat thepoint that heisthe onewho needs to get out of
thelitigation as quickly as possible, lest hemake matters worse for
himself and his family. Whether hehas theself-restraint, and the good
judgment, to seek that way out remains tobeseen.
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